CastleCops® - Speech, privacy rights at odds

Speech, privacy rights at odds
DO-NOT-CALL LIST AND SPAM LAW AT ISSUE
By Michael Bazeley
Mercury News

Bombarded daily by spam and harassed nightly by telemarketers, many consumers simply want to be left alone.

But as this week's legal furor over the federal do-not-call registry demonstrates, an individual's right to privacy often conflicts with the free-speech protections of marketers. The same tension could also be a basis for legal challenges to California's new anti-spam law, signed this week by Gov. Gray Davis.

There are obviously two interests in conflict,'' said David Sobel, general counsel for the Electronic Privacy Information Center in Washington, D.C.

The telemarketers have some First Amendment rights to disseminate information. But the consumer also has some rights to control unwanted information coming into the home.''

A person's right to privacy -- the ``right to be left alone,'' as Supreme Court Justice Louis Brandeis once called it -- has been firmly established by the courts. In a landmark privacy case in 1970, the Supreme Court ruled that individuals could ask their local postmaster to stop certain types of mailings from being delivered to their homes.

The ancient concept that `a man's home is his castle' into which `not even the king may enter' has lost none of its vitality,'' Chief Justice Warren Burger wrote in the 1970 ruling that is often cited in free-speech and privacy cases.

Traditionally respected

Burger added that ``the court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property.''

But trying to uphold that fundamental privacy right often places people and the government at odds with the free-speech protections of the First Amendment.

In the case of the do-not-call registry, telemarketers have argued that their free-speech rights are thwarted by a new Federal Trade Commission program that allows consumers to add themselves to list of phone numbers that would be off-limits to telemarketers.

A federal district court judge in Denver agreed Thursday, saying the government's decision to force commercial marketers to honor the do-not-call registry -- and not marketers representing political or charitable groups -- was discriminatory.

The FTC, which is operating the do-not-call registry due to take effect Wednesday, appealed that ruling Friday.

``Nobody likes spam. Nobody likes those calls. But the question is, how consistent is this with the First Amendment?'' said Ronald Collins, a scholar at the First Amendment Project in Washington, D.C.

Generally protected

In general, the courts have found that commercial speech is protected by the First Amendment unless it's misleading and the government can show a strong interest in regulating it. Moreover, the government cannot restrict commercial speech based on its content.

``When it comes to residential privacy, the Supreme Court has suggested that content-based discrimination is illegal,'' said Eugene Volokh, a law professor at the University of California-Los Angeles. ``The FTC is setting up content-based discrimination.''

Some have suggested that the FTC could avoid the discrimination problem by requiring all telemarketers -- charitable, political, commercial and otherwise -- to abide by the registry.

But Collins said the government cannot do that because it would be restricting religious and political speech, two forms of communications the courts have explicitly protected.

``The government cannot tell Jehovah's Witnesses that they cannot solicit for money,'' Collins said. ``But if I put a sign on my front door that says `no trespassing' or `no solicitations,' that's fine because I haven't involved the government.''

Some might question how a solicitation for money could be considered political or religious speech. But the Supreme Court, in a 1980 decision, said that ``solicitation is characteristically intertwined with informative and perhaps persuasive speech'' and that ``without solicitation the flow of such information and advocacy would likely cease.''

But some legal experts think the government could legally expand the registry to all telemarketers.

``I don't think it's restricting political or religious speech,'' said Bruce Johnson, a First Amendment expert at the Davis Wright Tremaine law firm in Seattle. ``The registry just says that I don't want to hear from anybody.''

California's new anti-spam law is a different animal that could face other legal challenges. The law makes it a crime to send an unsolicited commercial e-mail to a California e-mail address.

Opponents could argue that the law interferes with interstate commerce, which is protected by the Constitution. Others could challenge it on free-speech grounds.

But Volokh said the problems with California's spam law have less to do with constitutional questions and more to do with the law's vagueness. Experts have still not successfully defined what constitutes spam, he argues, and without that, ``it's more of a problem of defining what you're trying to prohibit. If the law outlaws too much, that's a problem.''

How, then, do we protect our privacy? By not counting on the government to do it for us, Collins says.

``We have spam filters, use them,'' Collins said. ``The answer for this can be found in Yankee ingenuity. Could we replicate the do-not-call registry without the government? There have to be technological ways to solve the riddle.''

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Contact Michael Bazeley at mbazeley@mercurynews.com or (408) 920-5642.
MercuryNews


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